Mauldin v. Wal−Mart Stores - Order denying … · Defendant Wal-Mart's Motion To Reconsider...
Transcript of Mauldin v. Wal−Mart Stores - Order denying … · Defendant Wal-Mart's Motion To Reconsider...
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORL3M .
ATLANTA DIVISION l ~~ i~uthei~ Dl
LISA SMITH MAULDIN, Individually and on behalf of all others similarly situated,
Plaintiff, CIVIL ACTION N0 .
1 :01-CV-2755-JEC
Defendant .
Certification Order, With Incorporated Memorandum of Law [58] ; and
defendant Wal-Mart's Expedited Motion to Strike Portions of
Plaintiff's Expert Reports [59] . The Court has reviewed the
record and the arguments of the parties and, for the reasons set
10 72A Rev.fli82)
r~ .~e
v .
WAL-MART STORES, INC .
ORDER
This case is before the Court on defendant Wa1-Mart's Motion.
for Reconsideration of the Court's August 23, ?002 Class
Certification Order [90] ; defendant Wal-Mart's Motion to Withdraw
Counsel Theresa E . Yelton [99] ; defendant Wal-Mart's Motion For
Protective Order and to Compel Plaintiff to Provide Expert
Disclosures [47-1 and 47-2] ; plaintiff's Motion Pursuant to Rule
23(d)(2) to Serve Notice on the Class [$7] ; defendant Wal-Mart's
Motion for Leave to File Additional Memorandum in Support of
Motion for Reconsideration of the Court's August 23, 2602 Class
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\O 72A Rev.B/82)
forth below, concludes that defendant Wal-Mart's Motion for
Reconsideration of the Court's August 23, 2002 Class Certification
Order [40] should be DENIED WITHOUT PREJUDICE, defendant Wal-
Mart's Motion to Withdraw Counsel Theresa E . Yelton [99] should be
GRANTED, defendant Wal-Mart's Motion For Protective order and to
Compel Plaintiff to Provide Expert Disclosures [47-1 and 97-2]
should be DENIED as moot, plaintiff's Motion Pursuant to Rule
23(4) (2) to Serve Notice on the Class [5-7i should be DENIED
WITHOUT PREJUDICE, defendant Wal-Mart's Motion for Leave to File
Additional Memorandum in Support of Motion for Reconsideration of
the Court's August 23, 2002 Class Certification Order, With
Incorporated Memorandum of Law [58] should be GRANTED, and
defendant Wal-Mart's Expedited Motion to Strike Portions of
Plaintiff's Expert Reports [59] should be GRANTED in part and
DENIED in part .
Plaintiff, an employee of Wal-Mart Stores, Inc . ("Wal-Mart"),
filed the instant action against Wal-Mart on October 16, 2001 .
Plaintiff alleges that Wal-Mart's policy of denying its employees
health insurance coverage for prescription contraceptives
discriminates against women, and thus violates Title VII of the
Civil Rights Act of 1964 ("Title VII"), 42 U .S .C . 4 2000e-2(a), as
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amended by the Pregnancy Discrimination Act ("PDA"), 92 U .S .C .
2000e(k) . She asserts a claim under Title VII and the PDA on
behalf of herself and all others similarly situated, as a class
action pursuant to Rule 23 of the Federal Rules of Civil
Procedure . Plaintiff seeks derlaratory, injunctive, and equitable
relief on behalf of herself and those similarly situated,
including a declaratory judgment that defendant's exclusion of
coverage for prescription contraceptives violates Title VII, an
order requiring defendant to provide comprehensive health
insurance coverage for prescription contraceptives, and equitable
relief in the form of monetary compensation for the individual
class members for the fringe benefits allegedly denied them by
defendant when it refused to reimburse their out-of-pocket
expenses related to prescription contraceptives .
In an order [37j dated August 23, 2002, this Court partially
granted plaintiff's Motion for Class Certification [13] and
certified a class pursuant to Federal Rule of Civil Procedure
23(b)(2) . The class definition "includes all female employees of
Wal-Mart nationwide who are covered, or have been covered, by Wal-
Mart's health insurance plan at any time after March 8, 2001, and
who used prescription contraceptives during the relevant time
period ." (Order [37] at 96 .)
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I . Defendant Wal-Mart's Motion To Reconsider
Defendant Wal-Mart has moved this Court to reconsider its
earlier Order certifying this action as a class action [90] . The
Court has certified this case as a Rule 23(b) (2) class, which type
of class typically invokes injunctive or declaratory relief, not
monetary damages . Wal-Mart does not complain about certification
of the class for purposes of injunctive relief and agrees that
this Court's ruling should apply to members of the class . Wal-
Mart argues, however, that the class should riot be certified for
purposes of awarding monetary damages to the plaintiff in the form
of "back wages," which wages would consist of reimbursements for
the cost of prescription contraceptives and for the doctor's
visits that prescribed these contraceptives . Wal-Mart complains
that, because plaintiff removed her claims for compensatory
damages only in her reply brief in support of class certification,
Wal-Mart was unable to explain that this deletion did not undo the
continuing ramifications of the existence of a back pay claim .
Wa1-Mart has used the pending motion for reconsideration to
reiterate to the Court that, notwithstanding a back pay claim's
status as "equitable," not legal, relief, at bottom, plaintiff
wants money and this money relief, and the attendant expense in
calculating how much money should be awarded to each individual,
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would quickly dominate the injunctive part of plaintiff's claim .
In essence, Wal-Mart argues that because the calculation of any
"back" insurance reimbursements would be so time-intensive--taking
months, if not years to accomplish--and so expensive--given the
numerous minute questions that would have to be answered as to
each of the potentially hundreds of thousands of individual
claims--litigation concerning these individual claims for monetary
reimbursement would quickly dominate the injunctive aspect of the
case . As a result, Wal-Mart argues, plaintiff's monetary claims
should not be a part of any class certification, either as a Rule
23(b)(2) or 23(b)(3) class .
Wal-Mart's arguments are hardly frivolous, but then again
obviously neither is plaintiff's argument, as this Court did
initially rule for plaintiff and allow the class to he certified,
monetary relief and all . Admittedly, though, this case does
present a tougher practical question than is typical in such
matters . That is, plaintiff's case does not present the need to
decide Wal-Mart's liability, as an individual matter, for each
particular member of the class . If Wal-Mart is liable to one
plaintiff, it is liable to all ; hence, the Court's decision to
certify a 23(b)(2) class . As a result, this case is different
from the typical race or sex discrimination case that cannot be
certified as a class action because each individual discrimination
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claim would depend on its own facts and have to be litigated
separately ; a class, in such circumstances, would quickly devolve
into a series of unmanageable mini-trials on the question of
liability . See generally Cooper v . Southern Co ., 205 F .R .D . 596,
627-31 (N . D .Ga . 2001) (Evans, J .) Not so here . Thus, Wal-Mart
cannot argue that, as to liability, individual questions would
dominate class questions .
Yet, this case also does not fit neatly into the typical Rule
23(b) (2) type class in which a plaintiff seeks both injunctive
relief and back pay . In such cases, the plaintiff can proceed
with a back pay claim because, even though such involves monetary
relief, it is considered to be an equitable, not a legal, claim .
Cooper, 205 E . R . D, at 627 . Plaintiff argues that reimbursement of
expenses incurred by female employees in purchasing prescription
contraceptives is a form of back pay . Thus, as a category, this
reimbursement can be fairly characterized as equitable, not legal,
relief . Yet, Wal-Mart notes that figuring out how much
reimbursement each of the thousands of members of the class might
receive would be a daunting, time-consuming, expensive, and, most
importantly for this analysis, very individualized task, not
amenable to class treatment . Wal-Mart does argue persuasively
that, unlike the typical back wages case, in which the parties and
Court can know how much more money the plaintiffs would have
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earned had they received a given promotion and can then calculate
how much back pay the plaintiffs should receive, here the Court
will not be starting with numbers that are so easy to ascertain .
Wal-Mart argues that it and the plaintiff will have to undergo a
laborious and expensive process to determine how much
reimbursement each plaintiff should receive . Wal-Mart contends,
therefore, that the class should not be certified as to any
monetary claims, no matter how they are denominated .
Not surprisingly, plaintiff has argued that Wal-Mart
exaggerates greatly the difficulties inherent in making these
individualized calculations . The Court finds it difficult at this
juncture to reach a firm grasp as to just how difficult these
calculations will be, and it can discern sound reasons for each
party's respective positions as to the class certifiability of the
monetary relief portion of the claim . Yet, as there are no
discernable negative ramifications to maintaining the class as
certified--at least until summary judgment motions concerning
liability are determined--the Court concludes that Wal-Mart's
Motion For Reconsideration [40) should be denied at the present
time, without prejudice to being refiled should the plaintiff
survive a motion for summary judgment . On the merits, plaintiff
has raised a novel claim that presents an issue of first
impression in this circuit . Indeed, no federal circuit court
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AO 72A (Rev.B/82)
appears to have yet addressed this question .' It is, thus, far
from certain that plaintiff will survive a summary judgment
motion . Therefore, using the Court's scarce resources to figure
out at this time exactly how individualized these calculations of
"reimbursement" would be--which inquiry would be necessary before
determining whether individualized damages determinations dominate
the questions common to the class--could well turn out to be an
unnecessary exercise . Accordingly, the Court DENIES WITHOUT
PREJUDICE defendant Wal-Mart's Motion For Reconsideration [90] .
It GRANTS, however, defendant Wal-Mart's Motion for Leave to rile
Additional Memorandum in Support of Motion for Reconsideration of
the Court's August 23, 2002 Class Certification Order, With
Incorporated Memorandum of Law [58J .
II . Plaintiff's Motion to Serve Notice on the Class
Plaintiff argues that this Court should order notice of the
instant class action to be served on the members of the class .
Plaintiff asserts that "[p]rompt issuance of notice is
' Two district courts, however, have agreed with plaintiff's contention that exclusion of prescription contraceptive drugs, in the particular employer-provided health insurance plans at issue, either violated Title VII or potentially violated Title VII, respectively . See Erickson v . Bartell Drug Co ., 141 F . Supp . 2d 1266 (W . D . Wash . 2001) ; Cooley v . DaimlerChrysler Corp ., 200 WL 21953901 (E .D .Mo ., Mar . 28, 2003) (denied Wal-Mart's motion to dismiss) .
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particularly important in this case because class members need to
be instructed to retain certain receipts and records that may be
used in computing individual back pay awards ." (Pl .'s Mem . of Law
in Supp . of Mot . Pursuant to Rule 23(4)(2) to Serve Notice on the
Class [hereinafter "Pl .'s Notice Mot ."] [57] at 2 .) Plaintiff
argues that, if the class wins a judgment against Wal-Mart, and
Wal-Mart is ordered to compensate the class members for their
expenses related to the prescription and purchase of prescription
contraceptives, many of the class will need to produce records to
substantiate their entitlement to such compensation and to
determine the amount of any such award . Plaintiff argues that
because class members continue to incur these contraceptive-
related expenses, they "must be informed immediately of the need
to retain these records ." (Id .)
In opposition, Wal-Mart argues that any notice to class
members is inappropriate unless and until this Court rules that it
has violated Title VII . (Opp'n to Pl .'s Mot . to Serve Notice on
the Class Prior to a Finding of Liability [hereinafter "Def .'s
Opp'n"] [62] at 1 . ; Wal-Mart asserts that. the "weight of the law"
is that notice should not be issued to a Rule 23(b)(2) class until
Wal-Mart has been found to have violated the law . (Id . at 3 .)
Wal-Mart also argues that class notice at this stage of the
litigation would prejudice it and would not benefit the class .
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(Id . at 6 .) In the alternative, should the Court decide to grant
plaintiff's motion, Wal-Mart requests that the proposed class
notice submitted by plaintiff be modified in nine ways . (Id . at
10-12 .)
As a general matter, a Rule 23(b)(2) class does not require
class-wide notice . Doe v . Bush, 261 F .3d 1037, 1099 (11`h Cir .
2001 ;, cert . denied, 534 U .S . 1104 (citation omitted) . Although
Rule 23(c)(2) requires that notice be given to members of classes
certified under subsection 23(b) (3), the text of the Rule does not
contain such a requirement for classes certified under subsection
(b)(2) . Rule 23(d)(2) does give the Court discretion to require
that "for the protection of the members of the class or otherwise
for the fair conduct of the action, that notice be given in such
manner as the court may direct to some or all of the members of
any step in the action . . ." Fed . F. . Civ . P . 23(d)(2) . Subsection
(d)(2) does not require notice at any particular stage of the
litigation, but simply "calls attention to its availability and
invokes the court's discretion ." Fed . R . Civ . P . 23(d)(2)
advisory committee's note . "In [sic] the degree that there is
cohesiveness or unity in the class and the representation is
effective, the need for notice to a class will tend toward a
minimum ." Id .
The situation changes somewhat, however, when a Rule 23(b) (2)
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class has been certified to seek both injunctive relief and some
form of monetary compensation, as is the case here . Members of
the class in the present action seek equitable relief in the form
of compensation for expenses that they incurred related to the
prescription and purchase of contraceptives . In a typical Rule
23(b)(2) class action, in which there is a cohesive plaintiffs'
group seeking only declaratory or injunctive relief, the due
process interests of absent class members will usually be
safeguarded by adequate representation of the class alone .
Johnson v . General Motors Corp ., 598 F .2d 432, 937 (5`1 Cir .
1979) .2 A 23(b) (2) class action in which individual monetary
relief for class members is sought in addition to class-wide
injunctive or declaratory relief, however, creates additional
concerns with protecting " :he due process rights of the individual
class members to ensure they are aware of the opportunity to
receive the monetary relief to which they are entitled ." Penson
v . Terminal Transp . Co ., 639 F .2d 989, 994 (5" Cir . Unit B Jan .
1981) . Therefore, "where monetary relief is sought and is made
available in a Rule 23(b) (2) class action, notice is no longer
discretionary but is required at some stage in the proceedings ."
Decisions of the "pre-split" Fifth Circuit handed down before the close of business on September 30, 1981, are binding as precedent in the Eleventh Circuit . Bonner v . City of Prichard, 661 F .2d 1206, 1207 (11`h Cir . 1981) .
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Id . (citation omitted) (emphasis added) . In these cases, it will
not always be necessary that the notice given be equivalent to
that required in Rule 23(b)(3) class actions .' Johnson, 598 F .2d
at 438 (citation omitted) . "In some cases it may be proper to
delay notice until a more advanced stage of the litigation ; for
example, until after class-wide liability is proven ." Id .
(citation omitted) .
Thus, it is clear that this Court must issue some form of
notice to members of the class at some stage of the litigation,
but it is not clear that the present, pre-summary judgment stage
is necessarily the appropriate time . The Court thus has
discretion as to what form of notice to issue and as to when this
notice should be distributed .
Considering all the factors at play in this particular
litigation, the Court declines to issue notice to the class at
this stage in the litigation . Although the Court has denied Wall-
Mart's Motion for Reconsideration of the Court's Class
Certification Order [90], supra, it has done so without prejudice .
Thus, if plaintiff survives a summary judgment motion, the Court
Rule 23(c) (2) requires that the court shall direct to (b) (3) class members "the best notice practicable under the circumstances, including individual notice to all members who car, be identified through reasonable effort ." Fed . R . Civ . Y . 23(c)(2) .
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has reserved the right to revisit that part of its certification
order granting class status on "back pay" claims . Indeed, Rule
23(c) (1) provides that a class certification order may he altered
or amended at any time before a decision on the merits has been
rendered . See Fed . R . Civ . P . 23(c)(1) . It is therefore possible
that the class definition could change before this Court renders
a final judgment on the merits of plaintiff's complaint . Given
that fact and the fact that it is not at all certain that
plaintiff will prevail on her claim, the Court concludes that it
would be highly wasteful of both party's resources to embark on
the very expensive efforts to identify and notify the thousands of
potential class members . Moreover, if the class definition were
to change at a later point, any notice issued now could later
become either over or under-inclusive .
Indeed, it seems to make good financial sense for both
parties to delay the issuance of notice . Much of the cost and the
burden of the issuance of class notice would fall on the shoulders
of the representative plaintiff and her counsel, See Oppenheimer
Fund, Inc . v . Sanders, 437 U .S . 340, 356-58 (1978) (holding that,
even where a defendant has been ordered to perform a task
necessary to send class notice, that the district court may
exercise its discretion to place the cost of performing the
ordered task on the representative plaintiff) ; Eisen v . Carlisle
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& Jacquelin, 917 U .S . 156, 177-79 (1979) (`Where, as here, the
relationship between the parties is truly adversary, the plaintiff
must pay fox the cost of notice as part of the ordinary burden of
financing his own suit .") . Given that fact, it makes more sense
for the plaintiff to wait until after there has been a final
judgment on the merits to issue class notice . Ii class notice is
issued now, and Wal-Mart prevails on the merits, then plaintiff
will have paid for notice for nothing . Similarly, in that event,
Wal-Mart would also have incurred unnecessary expenses in
identifying the thousands of members of the class .
Further, the Court is not convinced that members of the
plaintiff class will be prejudiced if they are not sent notice of
the class action now . Assuming that the class prevails on the
merits, members of the class should be able to obtain the
documentation needed to claim any share of monetary relief to
which they are entitled with a minimum amount of difficulty . As
Wal-Mart points out, even if members of the class have misplaced
their own records, most major pharmacies and doctors' offices keep
records for a period of years and would be able to provide the
necessary information .
In sum, the Court is fully cognizant of the necessity of
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issuing class notice at some stage of the litigation .' The Court
merely concludes that this stage is not the proper stage to do so .
It will, of course, revisit this question if plaintiff survives a
summary judgment motion . Therefore, the Court DENIES WITHOUT
PREJUDICE plaintiff's current Motion Pursuant to Rule 23(d)(2) to
Serve Notice on the Class [57] .
II . Motion to Strike Portions of Plaintiff's Expert Reports
On October 25, 2002, plaintiff served three expert reports on
Wal-Mart . These reports, prepared and signed by witnesses
prepared to give expert testimony, are required disclosures under
Federal Rule of Civil Procedure 26(a)(2)(B) .~ Wal-Mart
' This assumes that the class definition remains unchanged . If the definition were to change so that the class were no longer allowed to seek monetary relief, class notice would of course become completely a matter of this Court's discretion, pursuant to Rule 23(d)(2) .
The Rule states, in pertinent part, that
[t]he report shall contain a complete statement of all opinions to be expressed and the basis and reasons therfor ; the data or other information considered by the witness in forming the opinions ; any exhibits to be used as a summary of or support for the opinions the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years ; the compensation to be paid for the study and testimony ; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years .
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subsequently filed a motion to strike portions of the expert
reports, arguing that "the reports purport to offer into evidence
extensive and mostly irrelevant testimony that would require the
expenditure of considerable and unnecessary time and expense to
rebut . . ." (Expedited Mot . to Strike Portions of Pl .'s Expert
Reports With Incorporated Mem . of Law [59] at 1 .) Wal-Mart argues
that the experts' purported testimony that the `dal-Mart health
plan covers drugs that treat medical conditions is irrelevant
"because a person with high blood pressure or high cholesterol
already has a medical condition, while a healthy, non-pregnant
woman does not . Plaintiff does not allege she has a medical
condition ." (Id . at 3-9 .) Wal-Mart also argues that the experts'
intended testimony about the negative consequences of pregnancy
and whether insurance coverage of prescription contraceptives
would help solve the problem of unintended pregnancy is
irrelevant . (Id . at 5 .) "None of this testimony is relevant
because it is evidence that compares a pregnancy to a medical
illness or injury, while the only possible relevant comparison in
this case is between healthy (and non-pregnant) women and other
healthy persons ." (Id .)
Plaintiff responds that all of the proposed expert testimony
Fed . R . Civ . P . 26(a)(2)(B) .
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is intended to refute the defenses Wal-Mart has raised and will
likely raise in this case . (Pl .'s Am . Opp'n to Def .'s Expedited
Plot . to Strike Portions of Pl .'s Expert Reports [hereinafter
"Pl .'s Am . Opp'n"] [66] at 2,) Plaintiff asserts that she must be
allowed to present expert testimony that will cause the trier of
fact to conclude that pregnancy is a medical condition with
adverse health effects to women . (Id . at 5 .) Plaintiff also
asserts that she is prepared to rebut Wal-Mart's assertion that
its health plan covers no preventive treatments with expert
testimony showing that many treatments covered by the plan are
considered preventive in the medical community . (Id . at 5-6 .)
Finally, plaintiff argues that her proposed expert testimony will
help to show that Wal-Mart plan's "Reproductive Services"
exclusion is not a blanket exclusion and is not gender-neutral in
that the plan actually covers several treatments for men that are
related to reproductive functions . (Id . at 16 .)
Motions to strike are generally disfavored when the objection
is that the pleadings are irrelevant . United States v . Georgia
Dept of Natural Res ., 897 F . Supp . 1464, 1971 (N . D . Ga . 1995)
(Forrester, J .) (citations omitted) . The action ,^,f striking a
pleading should be used sparingly by the courts . Augustus v . Bd .
of Pub . Instruction of Escam6ia County, Florida, 306 F .Zd 862, 868
(5`h Cir . 1962) (quoting Brown & Williamson Tobacco Corp . v . United
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AO 72A (Rev.&82)
States, 201 F.2d 815, 822 (6`r' Cir . 1953)) . "It is a drastic
remedy to be resorted to only when required for purposes o£
justice . . . . The motion to strike should be granted only when the
pleading to be stricken has no possible relation to the
controversy ." Id .
All relevant evidence is admissible, except as otherwise
provided by the Constitution, federal law, or federal rules ;
evidence which is not relevant is not admissible . Fed . R . Evid .
902 . Relevant evidence is "evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence ." Fed . R . Evid . 901 . "The Rule's
basic standard of relevance thus is a liberal one ." Daubert v .
Merrell Dow Pharm ., Inc., 509 U .S . 579, 587 (1993) . The
introduction of expert testimony adds to the basic relevance
equation .
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case .
Fed . R . Evid . 702 . Rule 702 requires the court to examine the
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relevance of any proposed expert testimony . Davbert, 509 U .S . at
551 . "Expert testimony which does not relate to any issue in the
case is not relevant and, ergo, non-helpful ." Id . (citations
omitted . The generally liberal relevancy policy of Rules 401 and
902 is made somewhat more stringent in regard to expert testimony
because of the potential impact of expert testimony on a jury .
Allison v . McGhan Med . Corp ., 189 F . 3d 1300, 1310 (11`h Cir . 1999) .
Even so, the Court will attempt to ensure that any error is made
on the side of caution in evaluating the relevancy of this
proposed testimony . See Mart:inez v . United States Sugar Corp .,
880 F . Supp . 773, 777 (M . D . F1 . 1995) .
Even with the low relevance requirement of the Federal Rules,
there are some portions of plaintiff's proposed expert testimony
that are simply too far afield from anything the Court can
envision of as being relevant to this litigation . While the Court
could allow these reports and simply ignore the irrelevant parts,
Wal-Mart argues that it would then be forced to expend unnecessary
resources hiring expensive experts to counter or clarify facts
that are totally irrelevant to this proceeding . Therefore, the
Court GRANTS defendant Wal-Mart's motion as to those parts of the
experts' testimony and it strikes such paragraphs of the
respective reports, as discussed below .
The Court turns first to the proposed testimony of Dr . Roger
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AO 72A (Rev.&82)
W . Rochat . The Court strikes Paragraph Number Five of his report
as irrelevant . The number of children that the average woman
might bear without birth control and the number that most women
might deem to be optimal may constitute interesting statistics,
but they are totally irrelevant to the narrow legal question at
issue in this case . Plaintiff summarizes her claim against Wal-
Mart as follows : "Wal-Mart's health plan is comprehensive,
covering virtually all 'Legend Drugs', i .e ., prescription drugs,
while specifically excluding prescription contraceptives, which
can only be used by women . Because only women can become pregnant
and only women can use prescription contraceptives, such
inequities are discriminatory on their face . . ." (Pl .'s Am . Opp'n
[66] at. 1-2 .) Assuming plaintiff's statement of the issue in this
case to be accurate for purposes of this discussion, the Court
cannot see how the testimony in this paragraph would have any
tendency to make any fact that is of consequence to the
determination of this action more probable or less probable than
it would be without the testimony . The fact that some women do,
and some women do not, want to have children at all is obvious and
has absolutely no bearing on whether Wal-Mart's health plan is
comprehensive or whether it discriminates against women .
The Court also strikes Paragraphs Number Six and Seven of Dr .
Rochat's report . These paragraphs deal with the attitudes of
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AO 72A (Rev.B/g2)
Georgia women towards childbearing . Again, how many children the
average Georgia woman would like to have is simply not relevant to
any fact of consequence in this case . These statistics do not
relate to any issue in the case and would not be helpful . For
example, if 63 .30 of married Georgia women wanted no more
children, instead of the 53 .3 figure cited in the report, or if
600 of women. with no children wanted to have a child in the
future, instead of the 70°s figure cited, the Court cannot discern
how these changes would either strengthen or weaken the
plaintiff's case . Furthermore, the Court has certified a
nationwide class of all female Wal-Mart employees who used
prescription contraceptives during the class period . These
proffered statistics purport to describe the attitudes of all
women (not just female Wal-Mart associates) in Georgia (not the
entire nation) . The Court is not certain that these numbers may
even be generalized to the class as a whole .
The Court also strikes Paragraphs Number 10 and 11 of Dr .
Rochat's report . The issue in this case is whether Wal-Mart's
decision not to cover prescription contraceptives under its health
plan violates Title VII, not the consequences of unintended
pregnancy . Again, it is obvious that a pregnancy, unintended or
otherwise, may have negative financial and other consequences .
Similarly, the number of women who experience unintended
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AO 72A (Fev.B/82)
pregnancies has nothing to do with the legal issues in this case .
Thus, even though most reasonable people likely agree that
intended pregnancies are preferable to unintended pregnancies,
that conclusion would not influence a decision on whether Wal-
Mart's choice not to cover prescription contraceptives violates
Title VII or not .
The Court strikes Paragraph 13 of Dr . Rochat's report . The
percentage of women in Georgia who have had sexual intercourse is
not an issue in this case ; this proposed testimony is therefore
not helpful . The Court, however, takes judicial notice of the
fact that preventing unintended pregnancy requires either sexual
abstinence or effective contraception .' The Court also takes
notice that many women choose not to abstain from sexual
intercourse .
Finally, the Court strikes Paragraph 16 of Dr . Rochat's
report . Dr . Rochat's opinion that women "must have" access to
each of the prescription contraception methods again does not help
this Court determine whether Wal-Mart's decision not to cover
"A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned ." Fed . R . Evid . 201(b) . "A court may take judicial notice, whether requested or not ." Fed . R . Evid . 201(c) .
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AO 72A (Rev.fli82)
birth control pills constitutes a Title VII violation . Such
testimony might be relevant in a Congressional hearing to
determine whether the law should be explicitly amended to require
insurers to cover contraceptives . It offers this Court no help,
however, in deciding whether the current law, as written, compels
that conclusion .
The Court now turns to the report of Dr . Philip D . Darney .
First, the Court strikes Paragraph 16 of his report . This
purported testimony is irrelevant for the same reasons that the
purported testimony contained in Paragraph 10 of Dr . R,ochat's
report is irrelevant . Simply put, the risks and dangers of
unintended pregnancies versus intended pregnancies are not at
issue in this litigation .
Second, the Court strikes Paragraph 18 of Dr . Darney's
report . Women who receive medical services related to
prescription contraceptives likely have health insurance and so,
of course, will be more likely to receive other kinds of medical
treatment than the general population, which includes many women
who have no health insurance . This fact does not relate to the
issue in this case, which, again, is whether the Wal-Mart health
plan's non-coverage of prescription contraceptives is
discriminatory under Title VII .
Finally, the Court strikes Paragraph 21 of Dr . Darney's
29
AO 72A (qev.fl/82)
report . The purported testimony contained in this paragraph
constitutes a policy argument, not a piece of relevant evidence
that would form part of the basis of a legal argument . The Court,
however, takes judicial notice that poor women--and probably many
non-poor women--are more likely to use something that is free (in
this case, prescription contraceptives) than something for which
they have to pay .
Last, the Court has considered the report of Dr . Zachary B .
Gerbarg . Wal-Mart requested that this Court strike Paragraphs
Five and Seven of the report . The Court declines to do so for the
following reasons . Paragraph Five deals with the scope of the
coverage of the Wal-Mart health plan, which is indisputably the
subject of this litigation . The purported testimony in this
paragraph is therefore relevant . Paragraph Seven is merely a list
of the resources upon which Dr . Gerbarg may rely for his data . As
all of the substantive testimony contained in the report is
relevant, the list of sources from which this testimony may have
been derived is relevant as well .
In short, the Court deems irrelevant statistics that address
the attitudes of women toward pregnancy, sexual activity in the
population, or the financial consequences of pregnancy . Again,
while such data may assist a Congressional committee considering
whether to explicitly amend Title VII or pertinent ERISA statutes
25
AO 72A (Rev.fl/82)
to require coverage of prescription contraceptives by employers
and insurers, it is extraneous to the narrow legal issue under
consideration by this Court . The Court views as highly relevant,
however, expert testimony that helps the Court to understand
comparisons between conditions or health concerns that are covered
by Wal-Mart's plan and the extent to which differences in coverage
may be fairly characterized as gender-related . In other words,
expert testimony directed toward an interpretation of the
particular health plan at issue would likely be helpful to the
Court . In keeping with the above determination of relevancy, the
Court strikes Paragraphs Five, Six, Ten, Eleven, Thirteen, a .̂d
Sixteen of Dr . Rochat's report . The Court also strikes Paragraphs
Sixteen, Eighteen, and Twenty-One of Dr . Darney's report . The
Court declines to strike any of the paragraphs of Dr . Gerbarg's
report . To the extent that this ruling has not addressed every
sentence or phrase at issue in the proffered expert reports, the
Court believes that counsel can be guided by the principles
announced as to any further questions regarding the proper scope
of expert testimony .
Therefore, Defendant Wal-Mart's Expedited Motion to Strike
Portions of Plaintiff's Expert Reports [59] is therefore GRANTED
in part and DENIED in part . The Court hastens to add, though,
that these relevancy determinations are not set in stone . To the
26
A0 72A (Rev.&82)
extent that any of the information in the paragraphs of the
reports struck by this Order becomes relevant as the litigation
progresses, the plaintiff may move to re-open discovery to gather
facts on those issues .
III . Motion for Protective Order and to Compel Expert Disclosures
Wal-Mart filed Defendant's Motion for Protective Order and to
Compel Plaintiff to Provide Expert Disclosures [97-1 and 97-2] .
The Court has previously ruled on this motion in its conference
with the parties . In short, the Court deems irrelevant statistics
that address birth and sexual activity data among women . The
Court views as highly relevant, however, expert testimony that
helps the Court understand comparisons between matters covered and
those not covered by the policy--and the extent to which these
differences might be gender-related .
Specifically, Wal-Mart sought a protective order from this
Court in response to an interrogatory propounded by plaintiff in
her First Set of Interrogatories . The interrogatory in question
read as follows :
Interrogatory No . 3 : For each year during the Relevant Time Period, state : (a) Wal-Mart's actual cost for each Prescription Contraceptive identified in response to the above interrogatory ; and (b) the price Wal-Mart charges for each Prescription Contraceptive identified in the
27
AO 72A (Rev.&82)
above interrogatory .'
(Def .'s Mot . for Protective Order and to Compel P1, to Provide
Expert Disclosures [97] at 2 .) On October 7, 2002, plaintiff
filed her Emergency Motion to Compel Documents and Answers to
Interrogatories [95] . Plaintiff sought to compel Wal-Mart to
answer Interrogatory No . 3, regarding Wal-Mart's cost for each
prescription contraceptive that it sells and the price that it
charges for each . (Pl .'s Mem . in Supp . of Emergency Mot . to
Compel Docs . and Answers to Interrogatories [451 at 13-14 .) At a
motion hearing on October 11, 2002, the Court denied plaintiff's
motion to compel Wal-Mart to answer the interrogatory stated above
regarding the cost and price of prescription contraceptives . (Tr .
of Mot . Hr'g [56] at 8-9 .) As the Court has already orally ruled
that Wal-Mart will not have to provide information about its cost
for prescription contraceptives and the prices that it charges for
them, there is no reason for the Court to act again by issuing a
protective order on the same subject, other than to confirm that
The "above interrogatory" requested Wal-Mart to identify "each Prescription Contraceptive that is, or has been, available for sale at any Wal-Mart store during the Relevant Time Period, including all brand and generic varieties of each Prescription Contraceptive ." (Def .'s Mot . for Protective Order and to Compel P1 . to Provide Expert Disclosures [97] at 2 n .1 .)
Plaintiff agrees that, given the Court's previous ruling to deny its motion to compel Wal-Mart to disclose this information, this issue is no longer relevant . (Pl .'s Resp . to Def .'s Mot . to
28
AO 72A (Rev.B/82)
it has granted Wal-Mart's motion [97-1] .
Wal-Mart also asked this Court to "order plaintiff to
disclose her experts, along with the report and information
required by Rule 26(a)(2)(B) of the Federal Rules of Civil
Procedure, within five business days of the Court's ruling on this
Motion, or be barred from using experts in this case ." (Def .'s
Mot . for Protective Order and to Compel P1 . to Provide Expert
Disclosures [97] at 9 .) As noted above, plaintiff served three
expert reports on Wal-Mart on October 25, 2002 . Wal-Mart agreed
that plaintiff could produce the report o£ Dr . Zachary Gerbarg on
this date and thereafter could produce supplemental reports after
further discovery . (Del .'s Reply to Pl .'s October 21, 2002, Resp .
to Mot . to Compel [55] at 1-2 .) This apparently removed the last
sticking point between the parties regarding disclosure of expert
reports . (See Pl .'s Resp . to Def .'s Mot . to Compel P1 . to Provide
Expert Disclosures [54] at 2 .) As plaintiff has provided the
expert reports requested by Wal-Mart, there is no need for the
Court to order her to do so again . Defendant Wal-Mart's Motion to
Compel Plaintiff to Provide Expert Disclosures [47-2] is therefore
DENIED as moot .
Compel P1 . to Provide Expert Disclosures [59] at 2 . n .1 .)
29
AO 72A (Rev.B/82)
CONCLUSION
For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE
defendant's Motion for Reconsideration of the Court's August 23,
2002 Class Certification Order [40] ; the Court GRANTS defendant's
Motion to Withdraw Counsel Theresa E . Yelton [44] ; the Court
DENIES as moot defendant's Motion For Protective Order and to
Compel Plaintiff to Provide Expert Disclosures [47-1 and 47-2] ;
the Court DENIES WITHOUT PREJUDICE plaintiff's Motion Pursuant to
Rule 23(d)(2) to Serve Notice on the Class [57] ; the Court GRANTS
defendant's Motion for Leave to File Additional Memorandum in
Support of Motion for Reconsideration of the Court's August 23,
2002 Class Certification Order, With Incorporated Memorandum of
Law [58] ; and the Court GRANTS in part and DENIES in part
defendant's Expedited Motion to Strike Portions of Plaintiff's
Expert Reports [59] .
SO ORDERED, this ~~ day of September, 2003 .
1
xJf'C "1 l ~LLM~ 7 LIE E . CARNES
UNITED STATES DISTRICT JUDGE